Department of Justice lawyers told a judge that when the FBI gives one of its secret National Security Letters to a company, the company is allowed to reveal the NSL's existence and discuss its quality — it lied.
The Electronic Frontier Foundation, which is litigating on behalf of an unnamed telco that received an NSL, caught it out and made it apologize to the court.
"During oral arguments, we were surprised to hear the government retreat from its position that NSLs gag recipients from talking about the 'very fact of having received' an NSL," said Cindy Cohn, EFF's legal director, in a statement. "But now we learn that the government's position remains unchanged. Because the government's argument to the Ninth Circuit depended in part on the assertion that the NSL gag order does nothing to stifle public debate, this later retraction significantly undermines its case."
Cohn called the mistake a "very strategic error" by the government, noting that the correction was given only after her organization asked for specific clarification.
"They didn't draw the attention to the Court, I did," Cohn said. "You can call it an error … but we've seen the government willing to shave the truth and mislead Congress" on surveillance matters.
Justice Department Admits It Misled Court About FBI's Secret Surveillance Program [Dustin Volz/National Journal]